Abortion rules not a burden, court says

Published 10:19 pm, Thursday, March 27, 2014

To no one's surprise, Texas' tough new restrictions on abortion clinics received a green light Thursday from the 5th U.S. Circuit Court of Appeals, which found that neither of the two most controversial requirements imposes an undue hardship on women seeking abortions.

A three-judge panel unanimously ruled that there was no legal reason to keep the law known as House Bill 2 from being enforced. The decision reversed a lower-court ruling that found portions of the new law unconstitutional.

Two provisions of the law were challenged by a group of abortion providers - the requirement that abortion doctors have admitting privileges at a nearby hospital and stricter limits on the use of drugs designed to induce abortions. Circuit Judges Edith Jones, Jennifer Elrod and Catharina Haynes found that neither provision is so burdensome as to be unreasonable.

"All of the major Texas cities continue to have multiple clinics where many physicians will have or obtain hospital admitting privileges," the court's opinion stated. "Evidence offered by Planned Parenthood showed that more than 90 percent of the women seeking an abortion in Texas would be able to obtain the procedure within 100 miles of their respective residences even if H.B. 2 went into effect. If the admitting-privileges regulation burdens abortion access ... the burden does not fall on the vast majority of Texas women seeking abortions."

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Individual challenges

As for the rules on abortion pills, which require clinics to follow FDA protocols, the appeals court said women who might need to receive them past the "window" called for by the protocols should challenge the law using their individual medical circumstances. The court decision said general statements about current medical practices, which often go beyond the FDA protocols, are not substantive enough to prove the law was defective in not providing some sort of exception.

The district court did not overturn the provision in H.B. 2 calling for strict adherence to FDA protocols, even though the judge acknowledged it as burdensome.

Thursday's decision provided only the tiniest of relief for opponents of the law.

The court said if a doctor who performs abortions had applied for admitting privileges in a timely manner but was still waiting to hear back from the hospital, the law could not be enforced in the interim.

'Turned a blind eye'

Reaction to the ruling was quick and predictable. The Center for Reproductive Rights, which is representing the Texas clinics, accused the 5th Circuit of failing to "protect the lives and health of thousands of Texas women" by not overturning the law.

"The Fifth Circuit has turned a blind eye to the very real and devastating consequences that this law has had on thousands of Texas women, erecting barriers to abortion so high that women are simply left with no legal or safe options," said Nancy Northup, the organization's president, in a prepared statement. "Right now, the state of Texas is gutting the constitutional protections afforded by Roe v. Wade more than 40 years ago, leaving large swaths of Texas left without a provider."

Texas Attorney General Greg Abbott, who is running for governor, praised the ruling. "This unanimous decision is a vindication of the careful deliberation by the Texas Legislature to craft a law to protect the health and safety of Texas women."

Abbott's Democratic opponent in the governor's race, Sen. Wendy Davis, had killed the first version of the Texas abortion law with an 11th-hour filibuster that gave her a national profile. The Legislature passed it again in a special session. Davis used the 5th Circuit's decision to take a jab at Abbott and other supporters of the law.

"Greg Abbott wants to force his personal political agenda on Texas women," Davis said. "Insider politicians like Abbott are endangering Texas women's health by shutting down access to cancer screenings, pre-natal care, preventative care and birth control across the state."

Thursday's decision reversed the October ruling of U.S. District Judge Lee Yeakel of Austin. Yeakel found that the regulations violated the rights of abortion doctors to do what they think is best for their patients and would unreasonably restrict a woman's access to abortion clinics. His decision was stayed pending appeals by the 5th Circuit, a conservative circuit where opponents had little reason to hope for success. The decision is expected to be appealed to the U.S. Supreme Court, which declined to remove the appeals court's stay.

A matter of numbers

In H.B. 2, Texas lawmakers imposed some of the nation's toughest restrictions on when, where and how women may obtain an abortion. Clinic operators and abortion-rights advocates say the rules have closed a number of clinics, especially in smaller cities, and could impair access for millions of Texas women. Proponents said the measures were needed to protect the fetus and the health of women seeking abortions.

The 5th Circuit said, in effect, the impact of clinics potentially closing because a doctor might not be granted admitting privileges had to be measured on the number of women affected, not how greatly a relative few might be.

"The regulation will not affect a significant (much less 'large') fraction of such women," the court's ruling said. "The record does not show that abortion practitioners will likely be unable to comply with the privileges requirement."

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